Lords Sitting of 19 June 1871

MINUTES.
PUBLIC BILLS—Second Reading—House of Lords Appellate Jurisdiction (147).
Committee—Dogs* (134–191); Gasworks Clauses Act (1847) Amendment (No. 2)*(154–192).
Committee—Report—Burial Law Amendment* (126); Public Health (Scotland) Act (1867) Amendment* (148); Lunacy Regulation Amendment* (171); Landlord and Tenant (Ireland) Act, 1870, Amendment* (185–193).
Report—Charters (Colleges)* (93); Pier and Harbour Orders Confirmation (No. 1)* (127).
Third Reading—Metropolitan Commons Supplemental* (103); Local Government Supplemental (No. 2)* (149); India (Local Legislatures)* (150), and passed.

DECLARATION OF PARIS, 1856—SEIZURE OF AN ENEMY'S GOODS ON THE HIGH SEAS.—PETITIONS.
THE EARL OF DENBIGHrose to ask whether the Declaration of 1856 had been ratified by Her Majesty in Council, and to present Petitions of Inhabitants of
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Birmingham, Armley, South Shields, Chorley, Cononley, Bolton, and Maid-stone against the validity of the Declaration of Paris concerning the Seizure of an Enemy's goods on the High Seas. The noble Earl said, it was extraordinary how few persons were acquainted with what that Declaration really was, and he would therefore briefly give its history. When the Plenipotentiaries who had been engaged in negotiating the peace with Russia had concluded their labours, Count Walewski suddenly proposed that before separating they should sign a Declaration with respect to maritime law to the following effect:—First, that privateering should be abolished; secondly, that a neutral flag should cover an enemy's goods with the exception of contraband of war; thirdly, that neutral goods, with the exception of contraband of war, should not be liable to capture under an enemy's flag; and fourthly, that a blockade in order to be binding must be effective. Some of the Plenipotentiaries stated that they must refer the matter to their respective Governments; but eventually they all signed the Declaration, and other nations were invited to accede to it. Spain, the United States, and Mexico had, however, abstained from doing so. Now, we had behold with wonder, not unmixed with awe, the rapid growth of Prussia into a powerful and gigantic Empire, which by its energy and military talent had succeeded within five years in crushing two of the greatest military Powers of Europe and our natural allies, Austria and France, and how on both occasions she had bee nursed by Russia, which had guarded her boundaries while she was engaged in those wars. This naturally aroused the attention of England, and compelled her to examine her own forces, and she found to her alarm that she could not properly equip and place in the field more than 500,000 troops, the Regular Army not exceeding 200,000, and the Militia and Volunteers, which raised the complement to 500,000, being more or less undisciplined. We were now endeavouring to make up for this, and to match ourselves with Germany and Russia—a nation of 30,000,000 against two nations of 40,000,000 and 80,000,000—and a system of voluntary enlistment against a system of conscription. In this we seemed to have very little chance of success—it was, indeed, like the frog

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in the fable which tried to swell itself to the size of the ox. We were trusting to the chapter of accidents and to our former good fortune; but it should be remembered that we did not possess the same power of offence and defence as formerly. We had been proceeding on the assumption that because we desired to be at peace and to make no enemies every one would be willing to let us alone. But it would be well to consider whether we had any friends, and whether any Power was likely to help us in our hour of need. He feared that our policy of neutrality on many occasions had produced great coldness; and what security had we that the unscrupulous statesmen who ruled with a rod of iron the German Empire would not, when we least expected it and were least prepared, offer studied insult to this country which would oblige us to engage in war? He could not help feeling the humiliating confession made, as he understood, by the noble Earl opposite (Earl Granville) during the recent discussion on the revision of the Treaty of 1856, for he admitted in almost so many words that we were obliged to conform to the wishes of Russia in the matter of the neutralization of the Black Sea, because we were not in a position to resist those wishes by force. There would be very little difficulty on the part of Germany in forcing us to go to war if she were so disposed, and she would not want for motives. Germany wished to become a great naval Power, and would like Holland and Belgium, the independence of which latter we had guaranteed; while Russia wished for Constantinople, the key of the East and the West, and after the defeat of Austria and France we were now the sole protectors of Turkey. Our Navy was formerly our chief means of defence; but we had now lost all power of injuring an enemy by sea, while our Army was utterly inadequate for offence or defence. As steam rendered an enemy almost ubiquitous, we should, unless prepared by fortifications round the island, well manned, be taken at a great disadvantage and though, we should send out our iron-clads and swift cruisers, the enemy's fleet would remain in port, preserved by torpedoes, while his commerce would be transferred to neutral bottoms, where, under the Treaty of Paris, they would be safe. This was the case in the Crimean War; for England and
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France having foolishly admitted that a neutral flag should cover the enemy's goods, the commerce of Russia passed through Prussia, Russia thus receiving about £17,000,000 of our money, and being thus enabled to prolong the war. The enemy, on the other hand, would fit out cruisers to prey on our commerce, the right of insurance would rise, British merchants would prefer neutral bottoms, our merchant ships would rot in their harbours, and our sailors would be attracted by high wages and safety to neutral ships. Our Navy, too, would seek in vain for the enemy, and there being no prize-money in prospect sailors would not man our fleet. The enemy would be able, therefore, to undertake some such scheme as that described in the "Battle of Dorking." In a recent discussion in the House of Commons on the subject, the Declaration was defended on the ground that we should make the best of a bad job, and the Attorney General attempted to prove that England was previously bound by similar engagements; but this he (the Earl of Denbigh) denied. He maintained with the Petitioners that the Declaration, not being an agreement or treaty, was not binding—
"1. Because a treaty can be made only by authority of the Sovereign, and the British Plenipotentiaries who signed the Declaration of Paris had no authority for that purpose from the Queen of England. 2. Because no document is a treaty till it has been ratified by the Sovereign, and the Declaration of Paris has never been ratified by the Queen. 3. Because the Declaration of Paris affects to Change the law of England, and no treaty changing the laws of England is valid without the consent of Parliament, and the Declaration of Paris has never been assented to by Parliament. 4. Because the Declaration of Paris affects to change not the conventional, but the permanent and immutable law of nations, to change which is beyond the competence of Parliament or of any other human authority. 5. Because a treaty must profess itself a treaty, which the Declaration of Paris does not, but describes itself as a 'declaration adopted' in order 'to introduce into international relations fixed principles' on maritime law, and 'to establish a uniform doctrine on so important a point;' while, in fact, no uniform doctrine has been established, the United States, Mexico, and Spain not having adopted the Declaration of Paris. 6. Because a treaty must contain reciprocal and equivalent obligations—that the only equivalent, so far as Prussia and Russia are concerned, for the surrender of our power, which is purely maritime, would be a surrender of their power, which is purely military. 7. Because, though it has been alleged that the abolition of privateering was an equivalent for the surrender of our right to seize enemies' goods in neutral vessels, privateering

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has not been abolished, being avowedly retained by Spain, Mexico, and the United States."
By adhering to the Declaration we should be inflicting on ourselves a mortal injury; and it was remarked at the time by the late Lord Derby and by a noble Earl opposite that in case of necessity we should have to abandon it. This, however, it was better to do before a war broke out, as war might thereby be prevented by showing the uselessness of any Power going to war with us. In 1780 the "Armed Neutrality" was entered into on the principle that free goods made free bottoms; but, although then at war with our American colonies and with France and Spain, we refused to admit the principle, continued to seize the enemy's goods and broke up the league In 1801 the same tactics were attempted by Russia, which induced Sweden and Denmark to co-operate with her; but what course did this country take? The King, in his Speech to Parliament, said—
"A convention has been concluded by the Court of Russia with those of Copenhagen and Stockholm, the object of which is to renew their former engagement for establishing by force a new Code of Maritime Law inconsistent with the rights and hostile to the interests of this country. In this situation I could not hesitate as to the conduct which it became me to pursue. I have taken the earliest measures to repel the aggressions of this hostile Confederacy, and to support those principles which are essential to the maintenance of our naval strength, and which are grounded on the system of public law so long established and recognized in Europe."
Lord Eldon, in the debate on the Address, said—
"The right of searching neutral vessels originated in the rights of nature, and no convention or treaty can permanently destroy that right."—[Hansard, Parl. History, xxxv. 886.]
The Convention was broken by the Battle of Copenhagen, and Lord Nelson, in a despatch dated April 4, 1801, narrated a conversation with the Crown Prince of Denmark, to whom he had said—
"Suppose that England were to consent, which she never will, to this freedom and nonsense of navigation, I will tell your Royal Highness what the result would be—ruination to Denmark, and the Baltic would soon change its name to the Russian Sea."
Sir William Scott, moreover, declared a military war and a commercial peace to be a state of things not yet seen in the world; and Sir John Nicholls, King's Advocate, in an argument before Lord Kenyon, said—"There is no such thing as a war for arms and a peace for commerce."
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We had more steamers than the rest of the world put together, and he recently, in an extract from the report of Mr. Joseph Nimmo, jun., chief of the division of tonnage on English commerce at Washington, met with the following remarkable words:—
"England now enjoys almost a monopoly of the steam Navy of the world, and her power on the ocean is as great as when she overthrew the maritime power of Holland, and made herself commercial mistress of the seas. The most striking point is that in the trade of the United States with Europe there are now 133 foreign steamers engaged, of which 101 are British, and not one wearing the American flag."
These steamers it would be our interest, in case of war, to fit out as privateers, while it was, of course, the interest of the other Powers to discountenance privateering and to represent it as legalized piracy. If, however, it was right to employ francs-tireurs on land, why should not privateers be employed at sea? If we could not touch an enemy's goods on board a neutral ship, any war in which we might be involved would be much more protracted. There was a maxim "the command of the sea gives the command of the land," and we could not afford to throw away our chances, for recent events in France offered us a warning. The fratricidal conflicts which had just happened were the fruit of socialistic doctrines, and the International Society was said to have its head-quarters in this country, where, according to a statement in the leading journal, it had 95,000 adherents. Last year, moreover, the Prime Minister received a deputation from Messrs. Odger and Co., who represented the Communists; and on the Treasury bench in the House of Commons sat one who seven years ago was the intimate friend and trusted correspondent of the arch - conspirator of Europe, Joseph Mazzini. We trusted too much to our insular position; but he feared we were sowing the wind, and that unless we withheld our hand in time we should reap the whirlwind. Since England had first embarked in and sanctioned unjustifiable aggressions she had apparently lost her sense of justice and had been struck with judicial blindness. Like a Samson shorn of his strength and blinded at the hands of the Philistines, she made weak concessions, and could only utter protests, which were generally disregarded. England could rehabilitate herself, and by a stroke of

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the pen could recover her maritime supremacy; but until by her conduct she earned the blessing of the Almighty she could not utter the Scotch motto—"Nemo me impune lacessit." The noble Earl then quoted the following passage from Vattel as to the nullity of treaties pernicious to the State:—
"Though a simple injury or some disadvantage in a treaty be not sufficient to invalidate it, the case is not the same with those inconveniences that would lead to the ruin of the nation. Since in the formation of every treaty the contracting parties must be vested with sufficient powers for the purpose, a treaty pernicious to the State is null and not at all obligatory, as no conductor of a nation has the power to enter into engagements to do such things as are capable of destroying the State, for whose safety the Government is intrusted to him. The nation itself being necessarily obliged to perform everything for its preservation and safety, cannot enter into engagements contrary to its indispensable obligations."
He would conclude by putting his Question, Whether the Declaration of Paris had ever been ratified by the Queen in Council?
EARL COWPERreplied, on behalf of the Government, that the Declaration had never been ratified by Her Majesty in Council, but that they did not on that account consider themselves at liberty to repudiate it. The question of the treatment of neutrals had often been debated in Parliament, particularly 15 years ago, when this Declaration was signed, and it had been received generally with favour by their Lordships; and therefore he conceived it was not necessary for him to argue the matter further than to express his conviction that the Declaration had a tendency to mitigate the evils necessarily arising from war. It had been shown that during the 150 years prior to the French Revolution, 34 agreements were entered into between this country and other Powers, in all but three of which it was provided that free ships should make free goods.
THE EARL OF MALMESBURYsaid, he did not regard the Declaration as a document of as sacred a character as a ratified treaty. Sir George Lewis admitted, during the discussions of 1856, that if we were at war with any of the parties to it, it would cease to be binding as regarded that belligerent; while the late Lord Derby went so far as to declare that England had cut off her right hand, and called it the Capitulation of Paris. At
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the same time, Lord Derby held that all the Powers which had subscribed to the Declaration, and had not since disavowed it, were morally bound by it; but that we had a right to disavow it if our Government thought fit to do so. With regard to privateering, it was impossible to believe that if we were at war with some maritime Power, and met with a disaster at sea, we should adhere to the Declaration, instead of making use of those private means which we possessed above all other countries. Queen Elizabeth repelled the Armada almost entirely by private ships, which we now called privateers; and to speak of the Declaration as irrevocable was to lock up all the weapons of self-preservation which some contingency might render necessary. He did not recommend the Government to disavow the Treaty; but he wished to repeat the opinion he expressed at the time that it would have been better had it never been made, and principally because he believed that in time of war it would be impossible to maintain it. His lamented Friend Lord Clarendon, in his able defence of the Treaty, principally relied on the contrast between what took place at sea and what actually occurred on land. Lord Clarendon said the great object of modern civilization was to mitigate the horrors of war and oxtend and define the rights of neutrals; but that this had not been with respect to war by sea as it had been with respect to war by land, where the properly of neutrals, and even of peaceful subjects of the enemy, was respected. Now, the late war had proved that his lamented Friend was too sanguine in his views as to the progress of civilization, for in the recent war—14 years after the Declaration—the Germans did not respect private property on land—they made monstrous requisitions on private property, and in many cases there were cruel instances of pillage of private property. Lord Clarendon was under the delusion that these things would not happen, and that belligerents at sea could be placed on the same civilized footing as those on land; but these were all vain dreams. War would always be war, and bring with it all its horrors. It was all very well in fine weather and in time of peace to fancy that we could carry on war, as had been said, with rose water; but depend upon it, when the terrible pressure

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came, the sword would cut into shreds paper which had been signed during any peace. The vanity of the expectations that were entertained in 1856 was further evidenced by subsequent events—especially that admirable proposition that no war should begin without a previous attempt to mediate. This had proved an entire dead letter in the Danish War, the Italian War—when he himself pressed it on the belligerents—the Prusso-Austrian War, and the War of 1870—though in the last case the noble Earl opposite (Earl Granville) did his best to take advantage of that Protocol. Such Protocols or Declarations, in his opinion, did more harm than good, for they were only meant as lovers' promises, made to be broken. If we were at war with any great nation, the force of circumstances alone would oblige us to abandon the Declaration of Paris and resume the position we formerly hold.
EARL GRANVILLEsaid, the noble Earl who had just sat down had referred to two considerable authorities in support of the Petitions—Sir George Lewis and the Earl of Clarendon. But he (Earl Granville) thought that Sir George Lewis's opinion—that if we were at war with one of the parties to the Declaration it would no longer be binding as between that belligerent and ourselves—confirmed rather than weakened the sanctity attributed to it by his noble Friend (Earl Cowper), for this was exactly what happened with the most formal treaties ratified in the most solemn manner. The late Lord Derby, moreover, deemed that the Powers which had signed the Declaration, and had not disavowed it—as none of them had done—were bound in honour to observe it. But then the noble Earl (the Earl of Malmesbury) proceeded to make a statement which he could not but think—considering that the noble Earl was an ox-Secretary of State—was not a very judicious one. The noble Earl commenced by saying that he discountenanced what had been suggested by the noble Earl who introduced the subject, and what had been alluded to in "another place"—namely, that the Declaration ought never to have been entered into; that it would prove impracticable to maintain it in time of war; and that those nations who had signed it ought to withdraw from it.
THE EARL OF MALMESBURYsaid, the noble Earl had misunderstood him. He said he did not wish that this country should repudiate it now.
EARL GRANVILLE: But his noble Friend went on to enunciate what he considered the extraordinary doctrine that whenever we found it inconvenient to ourselves we should dispense with those honourable engagements into which we had entered. He entirely agreed that it would not be advisable, on our part, to repudiate it at the present moment; and at the Black Sea Conference he did not see what possible argument he could have brought forward for doing it. It was necessarily connected with three other propositions, and since 1856 no objection had been taken in the House of Commons to the doctrines there laid down. It might, no doubt, do harm to an enemy to seize his goods in a neutral bottom; but in the long run we did ourselves infinitely more harm and him good, by enlisting the feeling of the neutral in favour of the enemy. In the late war France made little use of her Navy—which, indeed, he believed, was not in a very efficient state—but she had the command of the sea, and but for this Declaration she would have been entitled to search our enormous Mercantile Marine in order to discover the enemy's goods. Now, he believed that would have made our neutrality perfectly impossible. It would have created an irritation in this country, and, rightly or wrongly, we should have resented it to the greatest degree. With our enormous military marine, moreover, we had the power of instituting an effective blockade, to which the right of blockade was specially confined. Without, however, arguing questions already settled, he would simply protest against the doctrine that we were at liberty, though we ourselves had been protesting against similar conduct, to say that whenever an international declaration by which we were bound in honour was inconvenient we could immediately withdraw from it.
LORD COLCHESTERsaid, he could not but think that the noble Earl (the Earl of Denbigh) had done good service to the country in bringing this question again into notice. He was as unwilling as anyone to propose the repudiation of treaties; but we had of late years seen that the most solemn international arrangements

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were not very long-lived, and that treaties regulating the most important concerns of Europe were in a few years sot aside and disappeared. He was somewhat surprised when the noble Earl opposite (Earl Cowper) referred to the long series of treaties by which the right under discussion had been waived in former times. In all these treaties, with scarcely an exception, if we abandoned the principle of seizing enemies' goods in neutral ships, we claimed in return that of seizing neutral goods in enemies' ships—a very different thing from the unconditional surrender of our right at the Treaty of Paris. Usually any concession to which two Powers agreed as to the limitation of their rights in time of war, put each, at least as belligerents, on the same footing as his enemy. But here our obligation was to the neutral, not the belligerent. If he rightly understood the case, under the present law, if we were at war with America, who had not been a party to the Declaration, America could seize our goods in French or Russian bottoms, while we, bound by this Treaty, could not seize American property in the vessels of any nation which was a party to the Treaty. As to the argument drawn from irritation created in the mind of neutrals, much irritation was often created by the exercise of the right of blockade; but few persons considered, though it had been put forward in theory, that the right of blockade ought to be modified or abolished. But it was not only in the interest of England that that Treaty was open to exception. Mr. John Stuart Mill—certainly not a man wedded to ancient laws or opinions—stated a few years ago his opinion that it was most objectionable in the general interest of the freedom of the world. He saw that it was a measure weakening the force of naval Powers—a force seldom formidable to national independence — and thereby strengthening military Powers, whose force was often extremely formidable to the rights of others. We resisted the power of Napoleon I., because when he was all-powerful by land we were so at sea; when he was master of Europe we drove all French commerce from the ocean. But now, in a struggle with a military despot we should, fettered by that Declaration, possess no such advantage as in former times. He feared that under present circumstances England
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could not shake off the encumbrance of that obligation; but he trusted that if international treaties were once more to be modified—if other Powers desired to be relieved from any "of the treaty obligations binding on them," we might endeavour to obtain a modification of an agreement, injurious, he thought, to the power of England, and injurious also to the highest interests of the world.
Petitions read, and ordered to lie on the Table.

HOUSE OF LORDS APPELLATE JURISDICTION BILL—(No. 147.)
(The Lord Westbury.)
HOUSE OF LORDS APPELLATE JURISDICTION BILL—(No. 147.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  LORD WESTBURY, in moving that the Bill be now read the second time, said, that the object was to put certain restrictions upon the right of appeal to their Lordships' House. The grounds on which he asked their Lordships to accede to the Motion were, first, to preserve the dignity of the House as a Court of Appeal, and, secondly, to repress unnecessary and vexatious litigation, and for the first purpose it proposed to take away the right in cases where the money sought to be recovered was of inconsiderable value, and for the second cases where the judgment of a Court of First Instance has been affirmed by the immediate Court of Appeal. Their Lordships would perhaps be surprised to hear that during the last four years the number of appeals from the Scotch Courts exceeded those from the Courts of England and Ireland together. Now Scotland was comparatively a poor country, with a population of only about one-tenth that of England and Ireland—showing that they must be eminently a litigious people, although they had the reputation of being a canny one. The number of appeals from the Scotch Courts during the period he referred to had been 119, whilst those from England and Ireland together were only 118. Of these 119 appeals would be found litigation of the most trifling, frivolous, and vexatious description—their Lordships were frequently called upon to decide appeals which related to matters of not greater importance than those which were daily decided by our County Courts. The

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  annoyance of having to hear such cases had called forth repeated expressions of dissatisfaction from their Lordships—a feeling which was experienced by himself in an intensified degree, for it was monstrous to reflect that while there were about 400 cases of great magnitude for hearing before the Judicial Commit too of the Privy Council, the time of the Law Lords—the most important Judges of that Court—should be occupied by some trumpery litigation. He would give their Lordships one or two illustrations. In one case the matter in dispute was originally of the value of 5s., but it was carried through the whole range of the Scotch Courts, and finally came before their Lordships, the last appeal, involving a cost of between £700 and £800. In another case the owner of a sheep sought compensation from the owner of a dog for injury caused to his sheep by the latter. The owner of the dog contended that the dog was sufficiently harmless and inoffensive, and that the sheep must have been at fault. The case was submitted in turn to the Sheriff's Substitute, to the Sheriff's Deputy, and Lord Ordinary, and ultimately came to their Lordships' House, where the litigants must have expended at least £800 over a sheep whose carcass could have been purchased for 40 s. The next case in the Reports to which he referred was of a similar character. Its original value was only £80, yet it had been carried through every Court, and finally brought up to waste their Lordships' time. It really was a lamentable thing that such enormous expenses should be incurred in reference to such a matter. Such things as these would excite their indignation but for the fact that they occurred day by day. In a case where the cause of action was almost equally trifling, his noble and learned Friend on the Woolsack had thus expressed himself—
  "My Lords, flint your Lordships' time should have been occupied, to the great detriment of other suitors, with such a case as the present is, perhaps, one of the least grievances of a litigation which has been going on now for about seven years and a-half. I can, therefore, my Lords, only say that this lady is greatly to be pitied for the course into which she has been dragged, evidently without any consciousness on her part of the extreme folly of these proceedings. We can do nothing else than reverse the decision which has been come to by the Inner Division of the Court of Session."
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  In another case the property contested was not worth more than 5s. intrinsically. The matter was argued at great length, and was productive of infinite expense and misery before a determination of the suit was arrived at. He appealed to his noble and learned Friends in the House whether these cases were not a fair specimen of a great portion of the litigation which came before them? Surely, then, it was right that their Lordships should come to the rescue of their own tribunal, and emancipate it from being concerned in the determination of such trilling matters. Their Lordships' time was of infinite value in determining the most important appeals from the most distant portions of the Empire, and far too valuable to be wasted on trifling appeals from Scotland. At all events, some relation ought to be preserved between the value of the property in dispute and the expenses of the appeal. Appeals in the Court of Equity were limited to any time within two years; but upon Writs of Error they allowed appeals for an indefinite term—for he knew of no limitation except that imposed by the Statute of William III. In cases where two years were allowed, to say whether there should be an appeal, two years more would probably elapse before it was decided, so that all that length of time would be allowed for the incurring of expense and for the growth of the worst feelings which were excited by litigation. The fees of their Lordships' House, he was happy to say, were very moderate; but the expenses incurred in litigation outside the House were necessarily very considerable. There must be first a petition, then the case must be prepared for their Lordships' House, and large fees to counsel were usually given. The case must be printed, and a certain number of copies furnished—a proceeding which in itself seldom cost loss than £100. Then there was the preparation of the appeal, the fees to counsel, and the charges for the attendance of solicitors. He thought that if they had a tribunal, an appeal to which involved charges such as these, such an appeal should be reserved for cases of the greatest importance; and this would have the indirect effect of preventing a losing party to a suit revenging himself upon his adversary by carrying his case to the last Court of Appeal. Upon these grounds he thought

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  that their Lordships would agree with him that some limit should be placed upon appeals, the effect of doing which would be to relieve their Lordships from a considerable part of their present duties, and would enable them to spare from time to time one of the Law Lords to assist the Judicial Committee of the Privy Council in the decision of important points of law. He therefore proposed that it shall not be lawful to appeal to the House of Lords from the judgment of any Court of Law or Equity in England, Scotland, and Ireland, in cases where the property claimed or the title to be decided does not exceed the sum of £1,000. There were exemptions to this enactment, the propriety of which would be obvious—namely, when the judgment is in a suit brought to try a title to any real estate, or incorporeal hereditament, of greater principal value than £1,000; when the Judge certifies that some important question of law is involved; cases of divorce and judicial separation, and cases of legitimacy. He proposed further that where a judgment of the Court of Common Law has been affirmed by the Court of Exchequer Chamber, or of the Courts of Equity, by the Court of Appeal in Chancery, or of the Courts of the First Instance in Ireland or Scotland by the proper Courts of Appeal, there shall be no further appeal to the House of Lords, except in cases where the Court which had determined the appeal from the Court below should give leave for a further appeal. He thought that these restrictions would prevent a great number of idle and useless appeals from coming before them; and they would also impose some restriction upon rich men who might desire to carry their causes to a variety of tribunals, the expense of which might be a mere nothing to them, but ruin to their opponents. It had been said by someone that law was a luxury—and a luxury it undoubtedly was if one had to pay for it the large sums he had mentioned—but as a luxury it should be restrained by sumptuary laws, by laws judiciously founded on considerations of the public good and general expedience. He should observe that the whole language of the Bill applied only to civil cases. It would be desirable to define what was meant in the Bill by the word "affirm," because whilst a decision might be affirmed in substance, there might be some alteration
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  of the language or some added condition. He would insert some words to prevent ambiguity arising upon this head. If their Lordships should think that this was a matter of too much importance to be committed to the discretion of a private Member, he should be content if their Lordships would give the Bill a second reading, with a view to a careful consideration of the whole subject, so that whatever legislation might be found expedient might be proceeded with next Session.
  Moved, "That the Bill be now read 2a."—(The Lord Westbury.)
  THE LORD CHANCELLORsaid, his noble and learned Friend needed no apology for bringing this subject forward, as the evil sought to be remedied by the Bill had undoubtedly become extremely great. He was afraid, moreover, that it was not the only evil connected with their Lordships' jurisdiction—other important remedies ought to be applied to grievances with reference to the hearing of appeals, and, therefore, he was glad that his noble and learned Friend had brought forward this Bill rather as a subject of discussion than with a view of passing it during the present Session. It was certainly desirable that professional and general opinion should be brought to bear on the subject. For his own part he thought there could be no reasonable objection to that portion of the measure which related to the limit of amount—indeed, his noble and learned Friend had scarcely stated the case with so much fullness as he might have done, being, no doubt, desirous not to protract the discussion. On three consecutive occasions—unless he was much mistaken—the House was occupied with three appeals from Scotland of the most trifling character—one being that to which his noble and learned Friend had referred, and was founded on the singular grievance that a man had, as alleged by the appellant, one sale on his premises and no more; another being a dispute about a few perches of land of no particular value in an agricultural district; and a third, which, though it related to a legacy of £600, was so protracted in consequence of the mass of evidence adduced as to the state of the testator's mind, and which filled two enormously thick volumes, that the cost must have amounted at least to

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  £1,400 or £1,500. It would, in his judgment, contribute to the welfare of all suitors if a reasonable limit of amount were imposed in regard to carrying cases to the Court of ultimate Appeal. In a country like this, where legal tribunals were so numerous, a Court of ultimate Appeal was necessary in order that the law might be made fixed and certain; but owing to a variety of causes, into which he need not now enter, the present machine was far too cumbrous and expensive to discharge the ordinary duties of determining from time to time the conflicts that arose between private parties where no great questions of right were in dispute, or points of law which it was necessary to settle for the benefit of the general community. He might remark, in passing, that in County Court and Bankruptcy eases, as well as those under the Winding-up Acts, there was a limit on appeals in regard both to amount and time. This was justifiable on principle; and it would be desirable to apply similar regulations to appeals to the House of Lords. In regard to the second part of the Bill, however, he did not entertain so favourable an opinion. If an intermediate appeal were allowed at all, he doubted whether it would be expedient to say that when a Court of Appeal had affirmed the decision of the Court of First Instance there should be no further appeal except with the leave of the Court which last determined the case. He thought this would give rise to inconvenience where the Courts below had differed in their judgments, or where the Judges of the intermediate Court had differed among themselves. There were no less than three tribunals at common law which might take different views of a subject, and in Chancery there might be appeals from one Judge to another single Judge; and satisfaction would not be obtained unless there was the right to a still further appeal. There were instances of the decision of the Court below, although confirmed by the intermediate Court of Appeal, being over-ruled by the House of Lords, and the Judges had afterwards, moreover, acquiesced in the soundness of their Lordships' decision. Then it was worthy of consideration whether the time for appealing ought not to be abridged, and also whether a suitor in the House of Lords ought to be allowed to conduct his own
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  case. Much time was usually wasted by suitors who pleaded their own cases, and great injury was done to themselves. Such persons took a prejudiced and sanguine view of their own cases, and were often induced to come to their Lordships' House, although they would probably refrain from doing so if they obtained the advice of an intelligent solicitor. One gentleman, the author of several able novels, successfully pleaded his own cause; but with this solitary exception he could not remember a single case of a suitor who pleaded for himself gaining the victory. Their Lordships sitting as a Court of ultimate Appeal, had a right to be assisted by counsel, and to have the cases brought before them argued in the best possible manner. In the last place—and it was a matter of the very highest importance—an appeal to the highest Court should be as much as possible confined to matters of law, just as an appeal to a superior Court of Common Law was when the facts of the case had been decided by a jury. Even on the Motion for a new trial, the facts were dealt with only as they bore upon the question whether there ought to be a now trial or not. Means could be devised by which the facts could be separated from the law and decided by the Court below, and the highest Court left to adjudicate on the law alone. While he was glad that the noble and learned Lord did not mean to press the Bill this Session, he certainty approved cordially the principle of the first part of it.
  LORD CHELMSFORDsaid, he was glad there was nothing in the appeal business of the House of Lords which rendered the passing of this Bill an urgent matter, for the House had now entered upon the causes which had been set down this year, and it was possible that the list might be disposed of before the House rose for the Recess. He admitted that it was important to prevent, if possible, frivolous and vexatious appeals, not only for the sake of maintaining the dignity of the House, but also to save litigants themselves from ruinous expenses. He entertained a doubt, however, whether the best way of preventing those appeals was to fix a pecuniary limit, below which it should not be competent to appeal. At all events, if such a principle were adopted, great care must be taken not to fix the sum too high; because, while £1,000 or

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  £500 might be an insignificant sum to one person, the principle involved might be important to another, and the Courts might have decided against him upon a question of law upon which probably there might be a divergence of opinion in the profession. In such a case it might be wrong to deny the opportunity of an appeal by fixing an unchangeable pecuniary limit. It was also important to take care that cases of great importance were not prevented reaching the House; and by way of illustration he would instance an insurance case, in which an action was brought upon a policy against an underwriter, who was only one of several responsible for the total amount insured, the aggregate of which might be several thousand pounds. Before 1747 a person appealing to this House was bound to find proper security; but in that year the requirement was abolished by Order, and a person was able to appeal upon entering into his own recognizances. It seemed to be the object of that rule not to check appeals, but to facilitate them by increasing the opportunities for entering them.
  LORD WESTBURYsaid, that security might be taken for costs.
  LORD CHELMSFORDsaid, only the security of the appellant himself, which might be of no value; but he only mentioned the matter as one for further consideration. As to preventing an appeal to this House in a case in which the judgment of an inferior Court had been already affirmed by a Court of Appeal, the Court of Exchequer Chamber was a Court of Appeal from the superior Courts, and it often happened there that judgments were affirmed by slender majorities—sometimes by a majority of one; and was it to be supposed that in such a case an appeal to this House was to be impossible? The other day there was an appeal to that Court from the Court of Queen's Bench; it was an action by a shipowner against the consignee of certain goods; there were three claims—for demurrage, freight, and detention. The Court of Queen's Bench decided in favour of the first claim, and against the second and the third. The Judges of the Exchequer Chamber were divided upon each of the three claims. In such a case as a divergence of the judgments between two such Courts, an appeal to this House ought not to be denied. The
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  Scotch Courts seemed to have been the corpus vile for which the experiment was to be made; and in the Scotch Courts there were frequently similar differences of opinion. Perhaps it would be right to say that where the judgment of the Court below was unanimously approved by the judgment of the Court of Appeal, there should be no further appeal to this House.
  LORD COLONSAYsaid, that while the protection of life and property and the redress of wrongs was the great end and purpose not only of Courts of Law, but of civil government, it was right to limit the range and cost of litigation, regard being had to the nature or value of the matter in dispute. The reasons that had been assigned for such limitation were sound, and the sum to be fixed upon was a matter of detail. The Scotch were familiar with the principle, which was applied to limit appeals from their County Courts, and the limitation had given such general satisfaction that it had been proposed to extend it, and a Commission had endorsed the recommendation. But part of the proposal in this Bill was so doubtful and hazardous that more time ought to be afforded for consideration; at present there were great doubts as to its expediency. That the number of appeals from Scotland was so large had been remarked upon as singular, considering the thrifty and patient character of the people of that country; but he thought this was explained by another trait in their character—namely, that while they were not more given to commence litigation than the people of England, yet when they engaged in a conflict of any kind whatever, they would not yield so long as they thought there was the slightest chance of success.
  Motion agreed to; Bill read 2a accordingly.

VACCINATION.

  MOTION FOR A SELECT COMMITTEE.
  LORD BUCKHURST, in moving for the appointment of a Select Committee to inquire into the present state of the law as regards Vaccination, said, that the Return which had recently been presented to Parliament showed a very unsatisfactory state of things, inasmuch as the number of children vaccinated was

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  not nearly so large as the number of births. Certain persons, he was aware, objected to vaccination, but they were so few that the Return could hardly be influenced by them, for he believed that the good sense of the public generally would overcome their opposition. He attributed the discrepancy between the number of children born to those vaccinated to the absence of a proper number of public vaccinators; to the fact that in large parishes there were not sufficient vaccinating stations; and to private medical practitioners not being compelled to send to the registrar a return of the children whom they vaccinated. Amendment was required in these matters, and he was of opinion that many children were un-vaccinated not so much from prejudice on the part of parents, as owing to the want of opportunity.
  Moved, "That a Select Committee be appointed to inquire into the present state of the law as regards Vaccination, with reference to the causes which operate in preventing the carrying out an efficient system of Vaccination."—(The Lord Buckhurst.)
  EARL DE GREY AND RIPONsaid, he did not wonder at the noble Lord having turned his attention to this subject, considering that the Metropolis was now suffering so much from that great scourge, small-pox; but he ventured to suggest to him that it would not be desirable to undertake at the present period of the Session the inquiry by a Select Committee which he had proposed. Questions connected with that subject had been inquired into by a Select Committee of the other House, whose Report, he believed, had been published, although the evidence it had taken had not yet been made public. Upon that Report a Bill had been founded and introduced into the other House by the Vice President of the Privy Council, and that Bill, he trusted, would, in due course, come up to their Lordships. The Bill dealt, at all events, with one of the questions on which the noble Lord had touched—namely, that of securing throughout the country the appointment of inspectors of vaccination, who should ascertain the manner in which the law was earned out. At present, Boards of Guardians had the option of appointing or not appointing such officers, and in very many cases the due appointment of them had been neglected. The Bill to which he had referred would
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  meet that state of things by making obligatory that which was now voluntary. No doubt it was desirable and necessary that an adequate number of public vaccinators should exist throughout the country, and that every facility should be afforded for vaccination by establishing a sufficient number of vaccinating stations; subject, however, to this consideration, that it was not always possible to secure a proper supply of really good vaccinating matter for a very large number of stations. For efficient vaccination they must have good vaccinating matter, obtained from healthy children; and they could not insure the quality of the vaccinating matter employed if they had too many stations. Consequently the number of the stations had to be governed by a double consideration—namely, the amount of population and the possibility of securing a supply of good matter. The object of the Privy Council was to see vaccination carried out in the most efficient manner, and it was their earnest desire that the utmost facility, consistently with insuring a supply of good matter, should be given to the public for having their children vaccinated. He would suggest to the noble Lord that he should postpone his Motion until the Bill on that subject came up from the other House, when their Lordships could fully discuss the question; and then, if the measure did not appear to the noble Lord satisfactorily to meet the case, it would be open to him to propose any Amendments in it which he thought necessary. That would be a better course for securing early legislation on that subject than the proposal of a second Inquiry by a second Committee at that period of the Session; and as he and the noble Lord had exactly the same objects in view he trusted that the Motion would not be pressed.
  LORD BUCKHURSTsaid, that after the explanation just given, he had no hesitation in withdrawing his Motion.
  Motion (by Leave of the House) withdrawn.
  House adjourned at Eight o'clock, 'till To-morrow, half past Ten o'clock.